Tania Walters v. Prince George's County, MD , 438 F. App'x 208 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-1843
TANIA NAKYA WALTERS,
Plaintiff – Appellee,
v.
PRINCE GEORGE’S COUNTY, MARYLAND; MARISSA S. DAVIS, In her
Official and Individual Capacity; JAMES E. KELLY, In his
Official and Individual Capacity,
Defendants – Appellants,
and
PRINCE GEORGE’S COUNTY, MARYLAND POLICE DEPARTMENT; MELVIN
WHITE, Chief of Police, In his Official and Individual
Capacity; JANE DOE DAVIS, Officer, In her Official and
Individual Capacity; JOHN DOE KELLY, Officer, In his
Official and Individual Capacity; JANE AND JOHN DOES 1-25,
Officers, In their Official and Individual Capacity,
Defendants.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Alexander Williams, Jr., District
Judge. (8:08-cv-00711-AW)
Submitted: June 21, 2011 Decided: July 13, 2011
Before DUNCAN, KEENAN, and DIAZ, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Tonia Y. Belton-Gofreed, Associate County Attorney, Upper
Marlboro, Maryland, for Appellants. Kathleen Anne Behan, BEHAN
LAW, Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Appellants appeal from the district court’s order
denying their motion for summary judgment in part, finding that
Appellants were not entitled to qualified immunity on Tania
Nakya Walters’ excessive force claims raised in her 42 U.S.C.
§ 1983 (2006) action, as material issues of fact existed.
Walters asserted that Appellants used excessive force when they
sprayed her with pepper spray and pinned her on the ground while
she was handcuffed. On appeal, Appellants assert that the
record conclusively shows that the force used was not excessive.
Walters claims that this court lacks jurisdiction over
Appellants’ appeal. We agree with Walters and dismiss the
appeal as interlocutory.
Government officials performing discretionary
functions are entitled to qualified immunity from liability for
civil damages to the extent that “their conduct does not violate
clearly established statutory or constitutional rights of which
a reasonable person would have known.” Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982). A defendant’s assertion of qualified
immunity requires consideration of two questions: (1) whether a
constitutional or statutory right would have been violated on
the facts alleged by the plaintiff; and (2) if so, whether the
right asserted was clearly established at the time of the
alleged violation. Saucier v. Katz, 533 U.S. 194, 200 (2001).
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It is well-settled that, while interlocutory orders
generally are not appealable, “a district court’s denial of a
claim of qualified immunity, to the extent that it turns on an
issue of law, is an appealable ‘final decision’ within the
meaning of 28 U.S.C. § 1291 [2006] notwithstanding the absence
of a final judgment.” Mitchell v. Forsyth, 472 U.S. 511, 530
(1985). However, “a defendant, entitled to invoke a qualified
immunity defense, may not appeal a district court’s summary
judgment order insofar as that order determines whether or not
the pretrial record sets forth a ‘genuine’ issue of fact for
trial.” Johnson v. Jones, 515 U.S. 304, 319-20 (1995). Thus,
we possess “‘no jurisdiction over a claim that a plaintiff has
not presented enough evidence to prove that the plaintiff’s
version of the facts actually occurred,’” but do have
jurisdiction over “‘a claim that there was no violation of
clearly established law accepting the facts as the district
court viewed them.’” Culosi v. Bullock, 596 F.3d 195, 201 (4th
Cir. 2010) (quoting Winfield v. Bass, 106 F.3d 525, 530 (4th
Cir. 1997) (en banc)).
Here, in denying Appellants’ motion for summary
judgment, the district court concluded that genuine issues of
material fact existed regarding Walters’ treatment. Although
the district court did make a legal determination that there was
a clearly established right to be free from excessive force,
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Appellants do not challenge that determination, but instead
attack the fact-related issues regarding whether certain actions
occurred that could amount to a constitutional violation. See
Iko v. Shreve, 535 F.3d 225, 237 (4th Cir. 2008) (“Because the
district court denied [summary judgment] by virtue of
conflicting factual inferences, . . . there is no legal issue on
appeal on which we could base jurisdiction.”). As such, we lack
jurisdiction over the appeal. *
To avoid this conclusion, Appellants rely on Scott v.
Harris, 550 U.S. 372 (2007), which held that “[w]hen opposing
parties tell two different stories, one of which is blatantly
contradicted by the record, so that no reasonable jury could
believe it, a court should not adopt that version of facts for
purposes of ruling on a motion for summary judgment.” The
Supreme Court found that, where a videotape “utterly
discredited” the plaintiff’s version of events, the district
court should have relied on the facts depicted by the videotape.
Id. at 380-81.
*
Appellants also challenge the denial of their motion for
summary judgment on Walters’ state law claims and their
assertion that a claim was not properly pled against Defendant
Kelly. These claims are also interlocutory. Appellants provide
no legal basis on which these claims could be reviewed prior to
a final order in the case and, thus, have waived any argument
that this court has jurisdiction over these claims.
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We find Scott to be easily distinguishable from the
instant case. First, the district court in this case did not
credit testimony that contradicted the videotape. Appellants
point to Walters’ testimony that she did not remove her feet
from the patrol car, even though the officers can be heard on
the videotape requesting that she put her feet back in the car.
However, Walters’ lower body is not visible on the tape, and it
is at least possible, viewing the evidence in the light most
favorable to Walters, that Appellants were concerned that
Walters was attempting to remove her feet from the car but had
not succeeded or had put her feet back in the car prior to being
sprayed. See Culosi, 596 F.3d at 201 (noting that district
court’s determination that a material fact exists is
unreviewable even if this court disagrees with the district
court’s assessment of the evidence).
Second, even assuming that the court should have
concluded that Walters removed her feet from the car, the
district court found that other material issues of fact existed
as to whether the force applied was justified. Such a
conclusion would necessarily rest on facts not present on the
videotape, including the officers’ training, the extent of the
danger Walters posed, the seriousness of Walters’ injuries, the
relevant police guidelines, and the intent of the officers. See
Iko, 535 F.3d at 239-40 (discussing factual issues arising from
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undisputed use of pepper spray, including compliance with state
regulations and training, and the relationship between the need
for force and the amount of force used). Moreover, the
videotape is simply not definitive as to either what was
happening with Walters’ lower body or exactly how she was
treated after she was removed from the car. Accordingly, we
conclude that the district court properly considered the
recording.
Based on the foregoing, we dismiss the appeal as
interlocutory. We dispense with oral argument, because the
facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
DISMISSED
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